Warren v. Villmer

Filing 9

MEMORANDUM AND ORDER re: 1 PETITION for Writ of Habeas Corpus filed by Petitioner Wesley Warren. IT IS HEREBY ORDERED that petitioner's application for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DISMISSED. An Order of Dismissal will be filed with this Memorandum and Order. Signed by Magistrate Judge Lewis M. Blanton on 9/28/12. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WESLEY WARREN,

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Petitioner,
v.
IAN WALLACE,
Respondent.

No. 4:12CV1147 LMB

MEMORANDUM AND ORDER
This matter is before the Court petitioner’s application for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The motion is untimely, and the Court will summarily
dismiss it. See 28 U.S.C. § 2254 Rule 4.
The Petition
Petitioner was convicted by a state jury of first degree assault and armed criminal
action. On May 24, 2000, the state court sentenced petitioner to seventeen years’
imprisonment. After his conviction was final, petitioner filed a Rule 29.15 motion for
postconviction relief in the state court, which was denied. The Missouri Court of
Appeals affirmed the denial of relief on May 13, 2003. Petitioner did not seek
discretionary review by the Missouri Supreme Court.

Discussion
Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts
provides that a district court shall summarily dismiss a § 2254 petition if it plainly
appears that the petitioner is not entitled to relief.
Under 28 U.S.C. § 2244(d):
(1) A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run from the latest of-(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
The limitations period began to run when the time for filing a motion for
rehearing by the Missouri Supreme Court expired. Gonzalez v. Thaler, 132 S. Ct. 641,
653-54 (2012). Such time expired on May 23, 2003, see Mo. Rule 83.02, and the

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limitations period, therefore, expired in May 2004. As a result, the petition is barred
by the limitations period.
Petitioner’s argument in favor of equitable tolling is incoherent and without
merit. As a result, this action is dismissed.
Accordingly,
IT IS HEREBY ORDERED that petitioner’s application for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 is DISMISSED.
An Order of Dismissal will be filed with this Memorandum and Order.
Dated this 28th

day of September, 2012.

LEWIS M. BLANTON
UNITED STATES MAGISTRATE JUDGE

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